People v. Silvagnio

79 A.D.2d 1112, 435 N.Y.S.2d 866, 1981 N.Y. App. Div. LEXIS 10059

Opinion

Judgment insofar as it imposes sentence unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted, upon a plea of guilty, to attempted escape in the second degree (Penal Law, §§ 110.00, 205.10) and promoting prison contraband in the second degree (Penal Law, § 205.20). He was sentenced to a one-year term of imprisonment on the attempted escape charge and a six-month term on the contraband charge, to be served consecutively. While the offenses were not committed through a single act or omission, and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd 2), they did arise from a single incident. Therefore, imposition of consecutive sentences aggregating more than one year was improper (Penal Law, § 70.25, subd 3). Accordingly, we modify the sentence on the attempted escape charge by reducing it to a definite term of six months which, when added to the six-month sentence on the contraband charge, will result in aggregate terms of one year. (Appeal from judgment of Erie Supreme Court — attempted escape, second degree, and promoting contraband, second degree.) Present — Dillon, P. J., Cardamone, Hancock, Jr., Callahan and Schnepp, JJ.